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DUI with prior felony DUI (options)

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CJJO

Junior Member
What is the name of your state (only U.S. law)? California

Hello, and thanks for your advice.
I had a felony (bodily harm) DUI in May 2005, I was convicted in Nov 2005.
I served 1 year jail time and paid all fines, I was on 3 years probation.
In Oct 2008, I crashed my motorcycle due to gravel at the edge of the road.
I was NOT arrested, but gave a blood sample at the hospital, which 6 weeks later came back .19 I was in hospital for 2 weeks.
In Dec 2008, recieved notice to appear on a misdemeanor charge.
This was put off until Feb 2009.
I signed a 2nd offense waver, and my lawyer and DA agreed to 10 days and not more than 1000.00.
Upon sitting in front of Judge, DA realized the previous violation was a felony
and now I will be returning in April under new charge.
This is in a different county and court than the 1st.
My questions:
is this a "wobbler" offense?
is there discretion available to DA/Judge to file as misdemeaner?
what possible plea bargins can be suggested? thanks again
 


SIN EATER

Member
No, it's not a wobbler.
The DA probably won't reduce it (by statute, it's a felony), but the DA can recomment a light sentence.

You may get a year in county, again.

Maybe you'll get a better plea bargain from the DA.
If I were you, I'd get a good negotiator as an attorney.

Who was the person injured in 2005 & how are they doing ?
(That may have an impact on sentencing.)
 

CJJO

Junior Member
Thanks for your reply Sin Eater,
Thank goodness the person who was injured is doing fine.
They live in MN, I have not had contact, since Xmas of 2005.
 

SIN EATER

Member
Give your attorney/PD some written references from community 'leaders', pastor, if you volunteer anywhere ...

Go to some Alcohol Anonymous meetings (get signature from supervisor of meeting) and give to atty/PD ...

You have to sit and think - what about you, or what you contribute to society - would mitigate a sentence ?

Family dependent on you for support ? What makes you a good addition to the community, so much so, that it is advisable/worthwhile to allow a short jail sentence ?

The Prosecutor will be compiling info which supports a heavy sentence - the danger to society you pose, any other legal offenses, any other behavior on your part which shows a lack of concern for others or for your action's consequences.
 

CdwJava

Senior Member
What are your current charges? (code sections, please) A second DUI offense is not going to be a felony unless someone other than you was injured.

- Carl
 

CdwJava

Senior Member
Carl, in CA once there is a felony DUI on his record, for the next ten years any new DUI will be a felony.
Do you have a code section for that? That's news to me.

I'm not saying it's not the case, but no one has ever bothered to tell US (the guys that book these folks) that this qualifies as a felony.

- Carl
 

SIN EATER

Member
Yup.
It's, technically, a wobbler. However I never met a DDA (or a DA who wanted to be reelected) who didn't file and fight them as a felony:


23550.5. (a) A person is guilty of a public offense, punishable by
imprisonment in the state prison
or confinement in a county jail for
not more than one year and by a fine of not less than three hundred
ninety dollars ($390) nor more than one thousand dollars ($1,000) if
that person is convicted of a violation of Section 23152 or 23153,
and the offense occurred within 10 years of any of the following:
(1) A prior violation of Section 23152 that was punished as a
felony under Section 23550 or this section, or both, or under former
Section 23175 or former Section 23175.5, or both.
(2) A prior violation of Section 23153 that was punished as a
felony.
(3) A prior violation of paragraph (1) of subdivision (c) of
Section 192 of the Penal Code that was punished as a felony.
(b) Each person who, having previously been convicted of a
violation of subdivision (a) of Section 191.5 of the Penal Code, a
felony violation of subdivision (b) of Section 191.5, or a violation
of subdivision (a) of Section 192.5 of the Penal Code, is
subsequently convicted of a violation of Section 23152 or 23153 is
guilty of a public offense punishable by imprisonment in the state
prison or confinement in a county jail for not more than one year and
by a fine of not less than three hundred ninety dollars ($390) nor
more than one thousand dollars ($1,000).

Typically, the most a DA will do for a defendant is take a conviction as a felony and allow a one year sentence in county jail, if the Judge will agree. If OP has already done a year in county on the first offense, the best he'd get is 16 months state prison, with release after 8 months.
 
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CdwJava

Senior Member
Interesting ... I see it now, but it's not in any of my DUI materials. It must be one of those things that is pursued by the DA but not charged by law enforcement.

Thanks for the info.

- Carl
 

SIN EATER

Member
Yes, and it's always a problem with bail (needs to be increased).
Most Judges remand them when they show for the arraignment and reset bail.

You may have a crappy charging Deputy who misses these, but that's a pretty serious error by a DA. The penalties are really escalated & if it's missed & there's another DUI with injury ... cover the fan.
 

CdwJava

Senior Member
Yes, and it's always a problem with bail (needs to be increased).
Most Judges remand them when they show for the arraignment and reset bail.

You may have a crappy charging Deputy who misses these, but that's a pretty serious error by a DA. The penalties are really escalated & if it's missed & there's another DUI with injury ... cover the fan.
It may be charged and we just don't go to trial with that on the docket. Since most DUIs plead out, I suspect that if a person has a prior they might leverage this to plead down to the misdemeanor.

It's odd it is not in any of my printed materials for DI training. I suspect that's because it is not a charge expected to be charged by law enforcement, probably because the "rap sheet" is not usually immediately available at booking, and most officers do not regularly review the driving history, either, so the suspect gets booked on the underlying 23152 rather than the 23550.5. I'll have to check and see if out jail has a bail schedule address it ... I suspect not, which will keep the bail really low without an enhancement.

- Carl
 

SIN EATER

Member
I know CHP is very aware of that section (I think they watch like hawks to ensure the DA picks up the prior felony).
It's really up to the arresting officer/detective to supply the DA with the proof of conviction.
I wonder if your court DA knows to check, if the charging DA isn't looking.

You'd know if these were filed as felonies - your Officer would be subpoened for the Preliminary Hearing (and that's a tight deadline - 10 days from arraignment).

Most plead out in the court hallway when the Officer/Deputy appears as a witness for the Prelim.

Then, again, maybe you haven't had any in that area ?
 

CdwJava

Senior Member
I know CHP is very aware of that section (I think they watch like hawks to ensure the DA picks up the prior felony).
It's really up to the arresting officer/detective to supply the DA with the proof of conviction.
I suppose it depends on the county. In San Diego County, the DA's office pulled their own CORI records for defendants, the arresting or charging officer wouldn't generally do that, and almost certainly not prior to booking. In my current county, we supply the CORI info to the DA - much to the chagrin and cringes of DOJ (they don't like it when you pass along controlled documents like that, but our DA will not file on any case where we do not submit a criminal history and DL record).

Then, again, maybe you haven't had any in that area ?
If we had them in San Diego, they never went to trial or I was not told the charges. Down there I just got called to testify to court and would not always know the specific charges the defendant faced. Here, I am more in tune with the process because I'm in the management side. But, I suspect it's that we don't get a whole lot of felony DUIs to begin with. I think the last felony DUI (23153(a) or (b))we got in my city (pursuant to reports and bookings) was in 2006. But, most the others tend to plead out. We very rarely go to trial on ANY DUI. When we do, it rarely goes beyond the suppression hearing (many people try to get the stop thrown out and when that fails, they plead).

- Carl
 

paguy88

Member
wow carl you are always 100% up on things... surprised you didn't know that one...( that is not a zinger at you just surprised) one of the reason I respect what you have to say..
 

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